FOURTH DIVISION

DILLARD, P. J.,

BROWN and PADGETT, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

October 7, 2024

In the Court of Appeals of Georgia

A24A0623. SIMMONS et al. v. SOLO CUP OPERATING

CORPORATION.

DILLARD, Presiding Judge.

The trial court granted Solo Cup Operating Corporation’s motion to dismiss

this wrongful-death action,1holding that it was barred by the Georgia Workers’

Compensation Act. For the following reasons, we reverse.2

The undisputedfacts showthatSolomanufactures single-use products for food

and beverage packaging at a plant in Conyers—e.g., the ubiquitous red Solo cup. On

1 We review a trial court’s grant of a motion to dismiss de novo. See Dennis v.

City of Atlanta, 324 Ga.App. 659, 659 (751 SE2d 469) (2013); accord Norman v. Xytex

Corp., 310 Ga. 127, 130 (2) (848 SE2d 835) (2020).

2 Oral argument was held on April 10, 2024, and is archived on the Court’s

website. See Court of Appeals of the State of Georgia, Oral Argument, Case No.

A24A0623 (Apr. 10, 2024), available at https://vimeo.com/934571504. 
December 13, 2019, the decedent—Taurus Andrews, who worked at the

plant—discovered a small bag containing several identification cards in a men’s

restroom. Andrews turned the bag over his supervisor, who then took it to another

supervisor. That supervisor returned the bag to Camron Golden, who also worked at

the factory. Prior to that day, Andrews and Golden were not acquainted with one

another.

Once the bag was returned to him, Golden discovered that $400 was missing.

He asked who recovered the bag, and a supervisor told him it was Andrews. Golden

then confronted Andrews, who denied taking the money. But Golden was

unconvinced by this denial, and he told other employees he believed Andrews had

stolen his money. Golden then retrieved a handgun and shot Andrews at the plant,

tragically killing him.3

Deborah Simmons—Andrews’s mother and legal heir—filed awrongful-death

action against Solo and other defendants, alleging that Solo negligently hired and

retained Golden and negligently failed to keep its premises safe. Solo filed a motion

3 Golden was later indicted for murder and other crimes, and he ultimately

pleaded guilty to killing Andrews.

2
to dismiss,4

arguing the trial court lacked subject-matter jurisdiction because the

action was barred by the exclusivity provision of the Workers’ Compensation Act

(“WCA”). Following extensive briefing, a period of limited discovery, and a motion

hearing, the trial court granted Solo’s motion to dismiss. The court then directed the

entry of final judgment as to Solo.

5

 This appeal follows.

1. Simmons first contends the trial court erred in concluding that the WCA’s

exclusivity bar is a question of subject-matter jurisdiction. This claim is not properly

before us.

As a general principle, the WCA is the exclusive remedy for a worker or next

of kin who sustains an “injury” arising out of and in the course of employment.6

4 See OCGA § 9-11-12 (b) (1).

5 See OCGA § 9-11-54 (b).

6 See OCGA §§ 34-9-11 (a) (“The rights and the remedies granted to an

employee by this chapter shall exclude and be in place of all other rights and remedies

of such employee, his or her personal representative, parents, dependents, or next of

kin, and all other civil liabilities whatsoever at common law or otherwise, on account

ofsuch injury, loss ofservice, or death[.]”); 34-9-1 (4) (defining an injury or personal

injury for purposes of the WCA as an “injury by accident arising out of and in the

course of employment”); Smith v. Camarena, 352 Ga. App. 797, 798 (2) (835 SE2d

712) (2019) (explaining that plaintiffs may not pursue a tort action when a worker’s

death is compensable under the WCA).

3
Beginning with Kellogg Co. v. Pinkston,

7

this Court has held that the exclusivity bar is

an issue of subject-matter jurisdiction.8Simmons asserts this Court’s decisions in

Kellogg and its progeny are wrongly decided, contrary to other decisions from this

Court9and the Supreme Court of Georgia,10and should be disapproved or overruled.

In Solo’s original motion to dismiss (filed in March 2022), Solo argued the trial

court lacked subject-matter jurisdiction because Simmons’s claims were barred by the

WCA. Over the next 18 months, despite filing several different responses, Simmons

never claimed the exclusivity bar was not an issue of subject-matter jurisdiction or that

Kellogg and its progeny were wrongly decided. Rather, Simmons consistently

7

 253 Ga. App. 190 (558 SE2d 423) (2001).

8 See id. at 191-92 (1) (558 SE2d 423) (2001) (holding the trial court was under

a duty to dismiss plaintiff’s complaint for lack of subject-matter jurisdiction when

WCA was plaintiff’s exclusive remedy); see also T & R S. Sanitation v. Lowe, 365 Ga.

App. 220, 221 (1) (878 SE2d 77) (2022) (considering for the first time on appeal

employer’s claim that the trial court lacked subject-matter jurisdiction because

plaintiff’s claims fell within the exclusive jurisdiction of the WCA); Savannah Hosp.

Servs., LLC v. Scriven, 350 Ga. App. 195, 199, n.4 (828 SE2d 423) (2019) (citing

Kellogg, supra, for the proposition that “the application of the exclusivity bar is akin

to an issue of the trial court’s subject[-]matter jurisdiction”).

9 Utz v. Powell, 160 Ga. App. 888 (288 SE2d 601) (1982).

10 Smith v. Ellis, 291 Ga. 566 (731 SE2d 731) (2012); Johnson v. Hensel Phelps

Const. Co., 250 Ga. 83 (295 SE2d 841) (1982).

4
maintained the trial court had subject-matter jurisdiction because her claims fell

outside of the WCA.

11

Suffice it to say, this Court may refuse to review issues not raised in the trial

court;12and for good reason—fairness to the trial court and parties “demands that

legal issues be asserted in the trial court.”

13

So, because this issue was not raised

11 A party may raise at any time a challenge to the trial court’s subject-matter

jurisdiction, seeAbushmais v. Erby, 282 Ga. 619, 622 (3) (652 SE2d 549) (2007) (“The

court’s lack of subject-matter jurisdiction cannot be waived and may be raised at any

time either in the trial court, in a collateral attack on a judgment, or in an appeal.”

(citation and punctuation omitted)), but Simmons does not contend the trial court

lacked subject-matter jurisdiction over this case.

12 See Pfeiffer v. Ga. Dep’t of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389)

(2002) (“[A]bsent special circumstances, an appellate court need not consider

arguments raised for the first time on appeal.” (footnote omitted)); Santana v. Ga.

Power Co., 269 Ga. 127, 129 (6) (498 SE2d 521) (1998) (holding that because a certain

argument was not raised and ruled on by the trial court, the Supreme Court of Georgia

would not address it on appeal); Ga. Dep’t of Natural Res. v. Coweta Cnty., 261 Ga.

484, 485 (405 SE2d 470) (1991) (“Issues which have not been ruled on by the trial

court may not be raised on appeal.”); Pneumo Abex, LLCv. Long, 357 Ga. App. 17, 29

(2) (849 SE2d 746) (2020) (“As we have repeatedly explained, this is a Court for the

correction of errors of law, and if the trial court has not ruled on an issue, we will not

address it. Indeed, without a ruling by the trial court on a particular issue, there is

nothing for this Court to review upon appeal.” (punctuation and footnote omitted)).

13

Pfeiffer, 275 Ga. at 829 (2).

5
below, we leave for another day the resolution of this interesting—but

unpreserved—claim of error.14

2. In a related claim of error, Simmons contends the trial court erred in holding

that she bore the burden of proving the WCAdid not apply because the exclusivity bar

is an affirmative defense. Aside from general allegations that Solo could not meet its

burden ofshowing the WCAapplied, Simmons similarly did not raise this issue in the

trial court below, and we will not consider it for the first time on appeal.15

3. Turning to the merits of the trial court’s ruling, Simmons contends the trial

court erred in granting Solo’s motion to dismiss because her tort claims are not barred

under the WCA. We agree.

As an initial matter, this case comes to us in a somewhat unusual procedural

posture. A motion to dismiss for lack of subject-matter jurisdiction under OCGA

§ 9-11-12 (b) (1) can “allege either a facial challenge, in which the court accepts as true

the allegations on the face of the complaint or a factual challenge, which requires

14 See supra note 12.

15 See supra note 12.

6
consideration of evidence beyond the face of the complaint.”

16

Such a motion “may

be heard and determined before trial[.]”17 And at such a hearing, factual issues “shall

be determined by the trial court[,]” and they “will be reversed only where the

evidence demands a contrary finding[.]”

18 When the trial judge conducts a hearing on

a motion to dismiss . . . ,” the court’s findings are “tested by the any evidence rule.”

19

But importantly, when a defendant asserts a lack of subject-matter jurisdiction in a

motion to dismiss, the plaintiff “bears the burden of establishing that jurisdiction

exists,”20 and we review the grant of such a motion de novo.

21

16 DouglasCnty. v. Hamilton State Bank, 340 Ga.App. 801, 801 (798 SE2d 509)

(2017) (punctuation omitted); see OCGA § 9-11-12 (h) (3) (“Whenever it appears, by

suggestion of the parties or otherwise, that the court lacks jurisdiction of the subject

matter, the court shall dismiss the action.”).

17 Conrad v. Conrad, 278 Ga. 107, 109 (597 SE2d 369) (2004) (punctuation

omitted).

18

Id. (punctuation omitted).

19

Id. (punctuation omitted).

20 Stillwell v. Topa Ins. Co., 363 Ga. App. 126, 127 (871 SE2d 8) (2022); accord

Douglas Cnty., 340 Ga. App. at 801.

21 See supra note 1 & accompanying text.

7
Turning to the WCA, as a general matter, this statute is the exclusive remedy

for a worker or next of kin who sustains an “injury” arising out of and in the course

of employment.22 Further, whether an injury “arises out of and in the course of

employment is generally a mixed question of law and fact,”23and these two

prerequisites are “independent and distinct[.]”24 And while the WCA is intended to

have broad application,25there are exceptions to this sweeping coverage.26As relevant

here, if the willful act of a third person is “directed against an employee for reasons

22 See supra note 6 & accompanying text.

23 Kil v. Legend Bros., LLC, 350 Ga. App. 680, 681 (830 SE2d 245) (2019)

(punctuation omitted); accord Lee v. Sears, 223 Ga. App. 897, 897 (479 SE2d 196)

(1996).

24

Frett v. State Farm Emp. Workers’ Comp., 309 Ga. 44, 46 (2) (844 SE2d 749)

(2020) (punctuation omitted).

25 See OCGA § 34-9-23 (“This chapter shall be liberally construed only for the

purpose of bringing employers and employees within the provisions of this chapter

and to provide protection for both.This chapter is intended to provide a complete and

exclusive system and procedure for the resolution of disputes between employers and

employees who are subject to this chapter concerning accidents and injuries arising

out of and in the course of employment as defined by this chapter.”).

26 See Hennly v. Richardson, 264 Ga. 355, 356 (1) (444 SE2d 317) (1994).

8
personal to such employee, then there is not a covered injury[.]”27

 Further, in order

to determine ifthe assault occurred for reasons personal to the employee, we consider

whether “the injuries of which the employee complains (1) arose out of and (2) in the

course of his employment.”

28

If both of these conditions are met, any tort claims are

barred by the exclusive-remedy provisions of the WCA; on the other hand, if either

condition is not met, then the injury arose from “reasons personal” to the employee,

and the plaintiff’s tort claims are not barred.

29

27

Potts v. UAP-Ga. Agric. Chem., Inc., 270 Ga. 14, 15 (506 SE2d 101) (1998); see

OCGA § 34-9-1 (4) (excluding an “injury caused by the willful act of a third person

directed against an employee for reasons personal to such employee” from the WCA

definition of “injury”).

28 Sturgess v. OA Logistics Servs., Inc., 336 Ga. App. 134, 135 (1) (784 SE2d 432)

(2016) (punctuation omitted); accord Potts, 270 Ga. at 15.

29

Potts, 270 Ga. at 15 (“Whether an injury is compensable or only a

non-compensable occurrence due to reasons personal to the employee is dependent

upon whether the injury arose out of and in the course of the employment. It has long

been established that the statutory requirements that the injury arise ‘out of’ the

employment and ‘in the course of’ the employment both must concur before the

[WCA] can apply to an injury to an employee.” (citation and punctuation omitted));

Sturgess, 336Ga.App. at 135-136 (1) (explaining that if an employee’s injuries (1) arose

out of and (2) in the course of his employment, then the employee’s tort claims are

barred by the exclusive remedy provisions of the WCA).

9
In this case, Simmons concedes that Anderson’s killing arose “in the course

of” his employment. Even so, she contends this killing did not “arise out of”

Anderson’s employment, but rather, for “reasons personal” to him.30 And as

pertinenthere, the “arising out of”prerequisite “dealswithcausation.”

31

Specifically,

the words “arising out of” mean “there must be some causal connection between the

conditions under which the employee worked and the injury which he received[,]”

and the “causative danger must be incidental to the character ofthe employment, and

not independent of the relation of master and servant.”

32 On the other hand, the

definition “excludes an injury which can not fairly be traced to the employment as a

contributing proximate cause, and which comes from a hazard towhich the workmen

would have been equally exposed apart from the employment.”

33

So, to be considered

30

Simmons argues that application of the “reasons personal” exception is

independent of whether an injury arises out of employment. But as noted above, the

two tests are related. See supra notes 28-29 & accompanying text.

31 Frett, 309 Ga. at 49 (2) (b).

32

Id. at 50 (2) (b) (“The accident must be one resulting from a risk reasonably

incident to the employment.And a risk is incident to the employment when it belongs

to, or is connected with, what a workman has to do in fulfilling his contract of

service.” (punctuation omitted)); accord Sturgess, 336 Ga. App. at 136 (1).

33Sturgess, 336 Ga. App. at 136 (1) (punctuation omitted).

10
an injury arising out of employment, it must “either be caused by activity the

employee engaged in as part of his or her job, or the injury must result from some

special danger of the employment.”

34

 Indeed, in cases where an employee 

is injured in a physical altercation with another person occurring on the

job but stemming from personal animosity, his injuries will nevertheless

be considered compensable under the [WCA] if it is shown that the

animosity arose from reasons related to the employee’s performance of

his work-related duties. Conversely, if the animosity giving rise to the

assault stemmed from reasons not related to the injured employee’s

performance of his work, then his injuries will not be considered

compensable under the [WCA].35

As a result, while we review the trial court’s factual findings for any evidence,36it

remains the “responsibility of this Court to review the legal framework within which

34Cartersville CitySch. v.Johnson, 345 Ga.App. 290, 297 (812 SE2d 605) (2018)

(punctuation omitted).

35 Western Waterproofing Co., Inc. v. Rogers, 204 Ga. App. 779, 780 (1) (420

SE2d 606) (1992) (emphasis omitted); accord Heard v. Mitchell’s Formal Wear, Inc.,

249 Ga. App. 492, 493 (1) (549 SE2d 149) (2001).

36 See supra note 19 & accompanying text.

11
the fact-finder operated, and thus to define what ‘arising out of’ employment means

as a matter of law.”37

Here, the trial court found Solo had human-resource policies and

procedures—discussedduringnew-hireorientation—regarding the company’s values

of honesty, integrity, and cleanliness, which required Andrews to turn over Golden’s

lost or mislaid bag. Employees were also instructed to promptly report any suspected

illegal or unethical behavior. Additionally, the court pointed to evidence that Andrews

mentioned to another employee that he looked inside of the bag and “the thought

was” Golden was involved in some kind offraud.And based on this evidence, the trial

court concluded Andrews was required by Solo’s policies to turn over Golden’s lost

or mislaid bag.

The trial court also noted that, on the day of the shooting, Golden texted the

following messages: “I found out who bought the bag back”; “[Solo] just ain’t doin

s***[.] I talk to the [person.] I done rob & stole so much [I know] when a [person]

37 Cartersville City Sch., 345 Ga. App. at 296; see Coleman v.Columns Properties,

Inc., 266 Ga. 310, 311 (467 SE2d 328) (1996) (explaining that whether injury arises out

of and in the course of employment is “a mixed question of fact and law”).

12
Guilty and he Guilty . . .”

38

 And to a different individual, Golden texted: “I talked 2

the [person] who brought the bag back 2 the supervisor & I instantly knew his b*tch

a** took it”; and later, “I can’t live here [no more] a [person] stole my money . . . &

I shot his . . . a**. . . .”

So, based on the foregoing, the trial court reasoned that prior to the date in

question, there was no animosity between Golden and Andrews, but—upon

discovering that his money was missing—Golden became angry with Andrews

because he was the person who brought the bag to a supervisor. Continuing, the trial

court explained that “[w]hile Golden’s animosity was personal, between himself and

Andrews, the animosity arose because of what Andrews was required to do as an

employee of [Solo]—turn in the bag to a supervisor.” In the trial court’s view,

Golden’s anger toward Andrews arose from the performance of his job duties—i.e.,

turning in Golden’s mislaid bag. We disagree.

38 Golden used a racial slur throughout his messages, which the trial court

replaced with “person.” We will do the same here. We have also used asterisks in

recounting Golden’s profanity.

13
Returning a bag to its rightful owner, whether in compliance with one’s work

rules or merely as a proverbial Good Samaritan,39does not often incur wrath. And

here, there is no evidence Golden was angry because Andrews turned in the bag.

Notably, although two other employees—both supervisors—were also involvedinthe

return of Golden’s bag, there is no evidence Golden targeted them. Rather, the

evidence—as found by the trial court—shows that Golden was angry at Andrews

because he believedAndrews stole money from him. So, because any alleged theft was

entirely unrelated to Andrews’s performance of his work, we find—as a matter of

law—that the WCA does not apply here.40

39 See generally THE HOLY BIBLE, Luke 10:29-37.

40 See Lindsey v. Winn Dixie Stores, Inc., 186 Ga. App. 867, 868 (1) (368 SE2d

813) (1988) (holding that employer was not entitled to summary judgment when

evidence showed that employee’s altercation with coworker was the result of name

calling and not related to employee’s job duties); Walsh Const. Co. v. Hamilton, 185

Ga. App. 105, 105-06 (363 SE2d 301) (1987) (holding that WCA did not apply when

worker was attacked by coworker who objected toworker begging for food); Hartford

Accident & Indem. Co. v. Zachery, 69 Ga. App. 250, 251 (3) (25 SE2d 135) (1943)

(holding that WCA did not apply when claimant was attacked by a coworker because

coworker was “provoked by the repeated accusations of the claimant that he was a

talebearer, and not because the claimant was late for work or because of anything being

done by him incidental to his employment”). Cf. Swanson v. Lockheed Aircraft Corp.,

181 Ga.App. 876, 879-81 (1) (b), (c) (354 SE2d 204) (1987)(holding that assault arose

out of instructor’s employment when it resulted from earlier confrontation over

student’s test results).

14
Even so, Solo contends the positional-risk doctrine applies in this case. This

doctrine holds that “an accidental injury arises out of the employment when the

employee proves that his work brought him within range of the danger by requiring

his presence in the locale when the peril struck, even though any other person present

would have also been injured irrespective of his employment.”

41 Thus, although being

assaulted is “not an obvious part of most jobs, the [WCA] compensates for injuries

in cases where an employee is assaulted or killed if there is a nonpersonal, causal

connection to the work.”

42

 We are likewise unpersuaded by this contention.

As previously noted, Andrews’s death resulted from a personal matter:

Golden’s belief that Andrews stole money from him. This case, then, stands in stark

contrast from the positional-risk decisions relied upon by Solo, in which the injured

or killed worker was essentially an innocent bystander and not attacked for reasons

personal to the worker.43 Indeed, we have held that

41 Sturgess, 336 Ga. App. at 137 (1) (punctuation and emphasis omitted); accord

Chaparral Boats, Inc. v. Heath, 269 Ga. App. 339, 341 (1) (606 SE2d 567) (2004).

42 DeKalbCollisionCtr., Inc. v. Foster, 254 Ga.App. 477, 481 (1) (562 SE2d 740)

(2002).

43 See, e.g., Sturgess, 336 Ga. App. at 135-139 (1) (holding that positional-risk

doctrine applied when worker was killed by employee who sought out and sexually

15
[w]here the injury would have occurred regardless of where the

employee was required to be located, and results froma risk towhich the

employee would have been equally exposed apart from any condition of

the employment, there is no basis for finding a causal connection

between the employment and the injury, and no basis for compensation

under the positional[-]risk doctrine.44

So, given the particular facts of this case (as found by the trial court), we

conclude that Andrews was killed for reasons personal to him, such that his injury was

assaulted another employee because employment required worker’s presence in the

locale where the peril struck and, unlike in this case, exposed worker to a “common

risk”); DeKalbCollisionCtr., 254 Ga.App. at 481 (1) (holding positional-risk doctrine

applied when worker was killed while breaking up a fight between employer and

contractor and noting that, “[i]n this case, there is no evidence that [the worker’s]

death was causally connected to any personal matters”); Empl’rs Ins. Co.of Alabama

v. Wright, 108 Ga. App. 380, 381 (133 SE2d 39) (1963) (holding that positional-risk

doctrine applied where worker’s employment increased her risk ofsexual assault and

there was “no question of prior personal motivation or ill will between her and the

assailant”).

44 Sturgess, 336 Ga. App. at 137-38 (punctuation omitted); accord Chaparral

Boats, 269 Ga. App. at 343 (1).

16
not covered by the WCA.

45 Accordingly, the trial court erred in granting Solo’s

motion to dismiss.

Judgment reversed. Brown and Padgett, JJ., concur.

45

Simmons also points to evidence that—leading up to the shooting—Golden

also texted “Money Only [thing] I trip about,” and he asked another employee for

information about Andrews, including whether the other employee would be willing

to take Andrews home in exchange for a monetary payment. But we need not

determine if this evidence demands a contrary finding because, even under the facts

as found by the trial court, the WCA does not apply as a matter of law. See Conrad,

278 Ga. at 109 (explaining that “[f]actual determinations of the trier of fact will be

reversed only where the evidence demands a contrary finding” (punctuation

omitted)).

17